Opinion of Advocate General

My Lords,

In this action the Commission seeks a declaration under Article 169 of the EEC Treaty that, by imposing restrictions on the transit by road through Italian territory of live animals originating in a Member State and bound for another Member State or for a nonmember country, the Iulian Republic has failed to fulfil its obligations under the EEC Treaty (the principle of freedom of transit within the Community, Articles 30 to 34 of the EEC Treaty and Article 20 (2) of Regulation (EEC) No 805/68 and the corresponding provisions of other common organizations of the market concerning live animals).

The Commission was prompted to take action in this case by complaints made to it in particular by the Belgian authorities about difficulties encountered in transporting live animals by road through Italy to, inter alia, Greece and Yugoslavia. After a first exchange of views, the Commission delivered a reasoned opinion to the Italian authorities on 16 March 1982 pursuant to the first paragraph of Article 169. Point 1 of the reasoned opinion is in the following terms :

In point 2 of the reasoned opinion the Commission states that it considers that the Italian practice as regards the transport of live animals constitutes an infringement of various rules of Community law, which it enumerates.

It is to be noted here that there is no challenge to the Presidential Decree itself. The Commission's challenge is only to the Italian practice which it describes.

Not satisfied with the Italian Republic's reaction to its reasoned opinion, the Commission brought the present proceedings before the Court by an application dated 8 May 1984. Point 2 of that application mentions difficulties created by the Italian authorities for the importation and international transit of live animals transported by road, and describes those difficulties as follows:

The application gives no other details of alleged restrictions on road transit of live animals. It is merely averred in point 3 of the application that such restrictions are applied in exercise of a discretionary power conferred by Article 61 of the aforesaid veterinary health inspection rules approved by Decree of the President of the Republic No 320 of 8 February 1954. Like the reasoned opinion, the application contains no challenge to Article 61 itself but only to the alleged practices based on it. The only such practice mentioned in the reasoned opinion and in the application to the Court is the alleged requirement that transit of live animals through Italy should be by rail.

The Italian Government's defence is simple and clear: the Italian Republic does not impose any restriction on the transit in question. In the rejoinder it repeated: Italy does not impose any restriction on road transit through Italian territory of live animals originating in any Member State and bound for any other Member State or any nonmember country. The same position was reiterated at the hearing.

To impose an obligation on exporters that animals passing through Italy should go by rail whereas those going to Italy could go by lorry is, in my view, capable of constituting a restriction contrary to provisions of the Treaty.

The Italian Government accepts that at one time in a limited number of cases, traders were required to transport animals through Italy by rail. This was said to be due to the inadequacy of the supervision arrangements for transport by road and a desire to avoid any unnecessary delays or suffering for the animals concerned. This practice, however, it is said ceased; the Commission accepted that fact in connection with earlier proceedings against Italy in respect of exports from the Federal Republic of Germany (Case 194/81).

At the hearing I understood the Commission to accept that there was no longer any requirement that animals should be transported by rail. In any event there is no evidence whatever that at the material time such a requirement was imposed. The grounds relied on in the reasoned opinion and in the application to the Court in my view have not been made out by the Commission on whom the burden of proof lies.

In the course of the pleadings, however, certain other practices in relation to the transit of live animals through Italy were referred to by the Commission: first, it was said that prior authorization for movement of cattle through Italy was required unless bilateral agreements were entered into. The measures go beyond what is required under Community rules, which demand no more than that appropriate certificates be produced at the frontier. Secondly, it is alleged that the Italian authorities refuse to allow transit unless they receive a certificate from the country of destination guaranteeing that the animals in transit through Italy will not be turned back. These matters were first pleaded by the Commission in its reply, and were further urged upon the Court by the Commission at the hearing. There is no mention of them in the application or in the reasoned opinion which preceded it.

The scope of the present action is fixed by the terms of the reasoned opinion delivered on 16 March 1982 (see Case 45/64 Commission v Italy [1965] ECR 857, at pp. 864-865, and Case 211/81 Commission v Denmark [1982] ECR 4547, at p. 4558). The Commission may not widen the scope of the action during the course of the proceedings as it has attempted to do here (see Case 193/80 Commission v Italy [1981] ECR 3019, at p. 3032). Whether or not there is substance in the Commission's arguments concerning the bilateral agreements and the requirement of a certificate of acceptance by the receiving country, those matters may not be raised in the present proceedings.

It is thus not necessary to rule on the Italian Government's arguments that agreements with Belgium had been reached on all the requests made for the transport of animals, so that specific prior authorization was not being required of individual traders, or that, if there had been any problems created by the refusal of the country of destination (here Greece) to give the appropriate certificate, that is not the fault of Italy, which reasonably requires to know that cattle will be accepted before it allows them through its territory. The Commission's evidence on these points is in any event slight.

Accordingly I am of the opinion that the present application should be dismissed and the Commission be ordered to pay the Italian Government's costs.